Witness describes 2011 shooting scene for jurors

By
Jessica Priest
April 10, 2013 at 6:02 p.m.Updated April 10, 2013 at 11:11 p.m.

A Victoria woman described for jurors Wednesday how she saw a brown pickup speed down the gravel road leading into her 30-acre property hours before gun shots rang out nearly two summers ago.

Janet Lemke was gardening in her front yard when she heard the two gun shots fired three seconds apart the night of May 21, 2011. She said they came from her neighbor Grady Dwayne Duncan's house about 60 yards away.

Duncan, 38, is on trial this week charged with murdering a man he attended Coleto Baptist Church with, Forrest Marks.

The state maintains Forrest Marks was visiting Duncan's family in the 7400 block of San Antonio River Road to talk about his marital problems. They say hours into what was possibly a party, an argument started and Duncan shot Marks with a .40-caliber Smith & Wesson he later stored in his truck's center console.

Defense Attorney George Filley maintains Duncan acted in self-defense after Marks, who was known to carry a weapon, threatened to kill his family if they ever attempted to aid his wife in leaving him.

Lemke told jurors Wednesday that shortly after she heard the commotion, she went over to investigate. Near Duncan's porch, she found Marks, who she had never met until that night, injured and crawling toward his pickup. Three other people stood around him, watching.

"They were trying to get him to be still," she said, describing how the defendant's wife and others repeatedly pushed Marks down into the dirt. "They kept saying, 'Don't move. Don't move. You're going to make things worse,' but it didn't matter how hard you pushed, he was bound and determined that he was going to get there."

Her account was partly backed up by former Victoria County Sheriff's Sgt. Henry Castillo, whose photographs of the scene show four pools of blood leading up to Marks' body.

Although Castillo's measurements of how far away the blood and the spent shell casings were from the porch, which were between 5 feet and 5 inches to 14 feet and 2 inches, he said there was no way to tell where the defendant may have been standing when the fatal shot was fired.

Castillo said the spent shell casings were from a hollow-point round, which mushrooms out on impact.

Marks was shot in his abdomen and died before he made it to the hospital, witnesses have said.

Filley, however, got Castillo to point out that type of ammunition is often used by law enforcement when deadly force is deemed necessary and it is available to civilians at any retail provider.

Filley's line of questioning also suggested that investigators may have had tunnel vision.

When Castillo described how a detective told him to recover an unloaded .22-caliber rifle from the back seat of Marks' pickup, Filley got Castillo to point out to jurors that neither he nor anyone else may have actually taken an inventory of the pickup's contents or looked to see if there were bullets inside the pickup.

Witnesses have said Marks was fiddling with his pockets in the moments leading up to shooting, but all that was found in his blue jean shorts at the Travis County Medical Examiner's office was $39, a bill fold, a marijuana pipe and a can of tobacco.

Eli Garza, the first assistant criminal district attorney, said Tuesday during opening statements that while Marks may have had a troubled past, he meant well.

"For all his faults, he still wanted to care for his wife," he said.

And the first deputy to arrive at the property that night, Jacob Valdez, told jurors Tuesday that Duncan claimed to not know Marks' name and appeared drunk.

The trial will resume at 9 a.m. Thursday before Judge Robert C. Cheshire, at which time the state is expected to continue calling witnesses. Duncan is expected to testify later this week, Filley said.